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Apple defends motion to intervene in Lodsys patent suit

post #1 of 26
Thread Starter 
Apple has responded to Lodsys' objection to its motion to intervene in a patent infringement lawsuit against a number of iOS developers, insisting that it maintains a supplier-customer relationship with the developers that should permit intervention.

In response to patent licensing company Lodsys' objection to Apple's motion to intervene, the Cupertino, Calif., company filed a reply brief on Monday requesting a court hearing on its motion, Florian Mueller of FOSS Patents reports. Mueller noted that the court will likely decide on the motion very quickly, adding that he is "reasonably optimistic that Apple's motion will be granted."

According to court documents, Apple argues that differences over an apparent licensing agreement with Lodsys need to be resolved "on the merits, not at the pleading stage on a motion to intervene." The company also dismissed Lodsys' claim that it had filed its motion prematurely, instead arguing that a motion is never only "untimely" if it is too late, not too early.

Lodsys had objected to Apple's motion to intervene partially on the basis that the iPhone maker has only an "economic" interest in the case. But, Apple continues to maintain that its license with Lodsys provides "sufficient property interest" from a legal standpoint.

The company reiterated that its relationship with app makers is "precisely the type of supplier-customer relationship courts have found sufficient to permit intervention." Moreover, Apple insists that the particulars of its relationship with developers "must be resolved through discovery."

"Apple's License lies at the heart of this case, Lodsys has already sued numerous significant Apple customers and threatened dozens of others, and a boycott of some of Apple's core products by App developers has been proposed," the company wrote in its brief.

Lodsys had also claimed that newly-added defendants, which include larger gaming companies such as Electronic Arts, have the resources to defend themselves. "Although some of the new defendants may have greater resources than the original defendants, Lodsys does not contest the fact that none of the defendants have the technical information, expertise, and knowledge regarding how Apple's technology works or the negotiation and intent of the License itself to fully articulate and develop Apple's exhaustion defense," Apple said.

After sending threats to dozens of independent iOS developers, Lodsys filed a lawsuit against them in May, alleging that they had infringed upon a patent related to in-app purchasing technology. Though Apple has licensed the patent for iOS, Lodsys believes that third-party developers that use the in-app purchasing API provided by Apple are not covered by the license.



Apple quickly filed a motion to intervene in the suit, claiming that the defendants "lack the technical information, ability, and incentive to adequately protect Apple's rights under its license agreement."

The iOS development community has begun to band together to fight off Lodsys. One developer has created a legal defense fund and coalition in order to organize a "three-pronged attack" against patent trolls like Lodsys.

"Intellectual Ventures and their ilk are many tentacled beasts who use thousands of shell companies to do their dirty work. When they send blood-sucking tentacles like Lodsys into our community, we need to cut them off," developer Mike Lee wrote.
post #2 of 26
Apple: "Our lawyer-fu is stronger than your lawyer-fu!"

"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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post #3 of 26
awesome

Also -good news-

http://www.techdirt.com/articles/201...t-offers.shtml

Hopefully this will be the start of a lot of fighting back.
post #4 of 26
Maybe after being thoroughly trounced, the patent trolls will learn to leave Apple the hell alone!

Naw. Those guys never learn.
post #5 of 26
How can Apple's motion possibly be premature when they are arguing exhaustion. They are claiming Lodsys has no right to file tHese lawsuits to begin with. A hearing seems totally reasonable before anyone else has to go to court. This type of double dipping should be criminal.
post #6 of 26
Quote:
Originally Posted by MacRR View Post

awesome

Also -good news-

http://www.techdirt.com/articles/201...t-offers.shtml

Hopefully this will be the start of a lot of fighting back.

Cool! But did that happen in the East Texas jurisdiction, where patent trolls thrive? I cant tellthe article just says CAFC (Court of Appeals for the Federal Circuit). Still, sounds like a great (and obvious) precedent.
post #7 of 26
Quote:
Originally Posted by nagromme View Post

Cool! But did that happen in the East Texas jurisdiction, where patent trolls thrive? I cant tellthe article just says CAFC (Court of Appeals for the Federal Circuit). Still, sounds like a great (and obvious) precedent.

CAFC is a specific appeals court http://en.wikipedia.org/wiki/United_...ederal_Circuit

'The Federal Circuit is unique among the courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter rather than geographic location.'

Patents are one of the subjects.
post #8 of 26
Quote:
Originally Posted by MacRR View Post

awesome

Also -good news-

http://www.techdirt.com/articles/201...t-offers.shtml

Hopefully this will be the start of a lot of fighting back.

While it's good news it only applies to the very worst class of troll, perhaps even worse than Lodsys - we could call them patent ogres. Ogres don't just wait under a bridge for you to infringe their patent, ogres grind up even non-infringing firms to make their bread.

Lodsys, hate it as we may, has a patent which is at least relevant - and while Apple's license may cover the developers we as yet don't know that because the license is confidential.
post #9 of 26
Quote:
Originally Posted by cloudgazer View Post

While it's good news it only applies to the very worst class of troll, perhaps even worse than Lodsys - we could call them patent ogres. Ogres don't just wait under a bridge for you to infringe their patent, ogres grind up even non-infringing firms to make their bread.

Lodsys, hate it as we may, has a patent which is at least relevant - and while Apple's license may cover the developers we as yet don't know that because the license is confidential.

sorry- you are wrong.

just by the virtue of their tactic of threatening expensive litigation vs their small % of sales via settlement puts them directly in the line of fire of this precedent. Also- that's in addition to Lodsys being a non-practicing entity.

I think you need to read that smack down of a judgement again.

And learn more about patent law, and how the term patent troll came to be. You are severely misunderstanding the whole situation.
post #10 of 26
in addition- I hope this gives appseterdam/Mike Lee ammo to take lodsys down.

For those that aren't in the know- Mike Lee is a developer who is starting a legal defense team with a patent lawyer, Michael McCoy, to take on Lodsys.

http://arstechnica.com/apple/news/20...ent-trolls.ars
post #11 of 26
I think it's funny that you can buy a patent, but never actually use it in a product of your own, but still sue people who "infringe" on it... What a lodsys of crap....
post #12 of 26
Just thinking loud - where is Google? Didn't LodSys sued some Android Developers as well?

So, the door remains open and you have to defend yourself. No help from anybody. Excellent treatment for you guys. Keep praising the "Open" system.
post #13 of 26
Good on ya Apple! In the meantime Google is... *sigh* I won't even bother.
post #14 of 26
Aren't there other companies sueing app developers? I read briefly about at least one other company in an article that said there were more companies sueing. Why does Lodsys get all the coverage?

I think this topic deserves a broader scope.
What other firms are pressing suits against developers?
Is Apple doing anything in these seperate cases?
What ramifications are we seeing in the developer community?
post #15 of 26
Quote:
Originally Posted by geekd0m View Post

I think it's funny that you can buy a patent, but never actually use it in a product of your own, but still sue people who "infringe" on it... What a lodsys of crap....

Kind of like if you buy a car, never use it, but then complain when the neighbor's kid goes joyriding.
post #16 of 26
Quote:
Originally Posted by geekd0m View Post

I think it's funny that you can buy a patent, but never actually use it in a product of your own, but still sue people who "infringe" on it... What a lodsys of crap....

If you want to learn more about this ridiculous situation, check this radio show on Lodsy's/Intellectual Ventures tactics: http://www.thisamericanlife.org/radi...patents-attack
post #17 of 26
Quote:
Originally Posted by geekd0m View Post

I think it's funny that you can buy a patent, but never actually use it in a product of your own, but still sue people who "infringe" on it... What a lodsys of crap....

Bit like how you can buy shares in a company, never do any work for them but demand part of the profit. Or buy a building, never live in it but charge others to. Or basically anything that makes money out of an investment/ownership.
post #18 of 26
Quote:
Originally Posted by AppleInsider View Post

One developer has created a legal defense fund and coalition in order to organize a "three-pronged attack" against patent trolls like Lodsys.

That does just sound like a child whining because there not getting their own way. There already paying Apple 30% for their part of the tech, 2.5% to Lodsys for the bit they own isn't exactly huge in comparison.

Developers just need to face the fact you don't get the whole of the selling price. 30% to Apple, 20% to sales tax, maybe 5% in patents they've violated, around 20% - 30% in income tax or company tax on the profit. If they can't live on 32% of the selling price minus their own costs then maybe they've set the price to low.
post #19 of 26
Quote:
Originally Posted by timgriff84 View Post

That does just sound like a child whining because there not getting their own way. There already paying Apple 30% for their part of the tech, 2.5% to Lodsys for the bit they own isn't exactly huge in comparison.

Developers just need to face the fact you don't get the whole of the selling price. 30% to Apple, 20% to sales tax, maybe 5% in patents they've violated, around 20% - 30% in income tax or company tax on the profit. If they can't live on 32% of the selling price minus their own costs then maybe they've set the price to low.

I just paid $22.87 for an iPad2-64GB and my girlfriend loves her Panasonic Lumix GF 1 Camera that we got for $38.76 there arriving tomorrow by UPS. I will never pay such expensive retail prices in stores again. Especially when I also sold a 40 inch LED TV to my boss for $675 which only cost me $62.81 to buy. Here is the website we use to get it all from, GetCent.com
post #20 of 26
I find this case interesting, since Lodsys is claiming the developer are using their IP, however, Apple is the one one who licensed the technology and put the hooks into iOS such that developer can access and I am assuming that Apple's licensing agreement most likely has a clause which allows them to extend that license to their developers, this is pretty much standard licensing language in IP contracts.

The fact Lodsys is choosing to go after the developers who most like are only using the code and technology that Apple enable says to me they are attempting to set some sort of precedent where the user of a particular technology beyond the original licensee must also pay.

If this is their strategy, they could come after you and I and say you must pay to fee to them ever time you use their IP as well.
post #21 of 26
I use to respect Nathan Myhrvold. Now I consider him a bonafide douche bag of the umpteenth order.
post #22 of 26
Quote:
Originally Posted by brutus009 View Post

Aren't there other companies sueing app developers? I read briefly about at least one other company in an article that said there were more companies sueing. Why does Lodsys get all the coverage?

They are getting so much coverage because Apple went public saying that their deal with the original company (which Lodsys bought) covered the app developers and Lodsys is saying no it didn't.

Sometimes I wonder if Apple could sue Lodsys for breach of contract over not honoring the original deal and get back all the money they paid. they could use it to pay off the court costs for all these little guys


Quote:
Originally Posted by timgriff84 View Post

Bit like how you can buy shares in a company, never do any work for them but demand part of the profit. Or buy a building, never live in it but charge others to. Or basically anything that makes money out of an investment/ownership.

Not exactly. It has to do in part with intention. The intention of patents is so that active creators can protect their work during and after creating it.

The intention in buying shares is to loan money to a company to do whatever they do. The intention of buying a building is often to rent out its space (which is why there are zoning and permit laws you have to compile with when you agree to buy the building).

Folks like Lodsys buy control over a patent with merely the intention of suing folks. In the case of Lodsys, smaller folks they figured would fold fast cause they wouldn't have a clue that they were already covered by another deal.

A non tech's thoughts on Apple stuff 

(She's family so I'm a little biased)

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A non tech's thoughts on Apple stuff 

(She's family so I'm a little biased)

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post #23 of 26
Quote:
Originally Posted by timgriff84 View Post

That does just sound like a child whining because there not getting their own way. There already paying Apple 30% for their part of the tech, 2.5% to Lodsys for the bit they own isn't exactly huge in comparison.

Developers just need to face the fact you don't get the whole of the selling price. 30% to Apple, 20% to sales tax, maybe 5% in patents they've violated, around 20% - 30% in income tax or company tax on the profit. If they can't live on 32% of the selling price minus their own costs then maybe they've set the price to low.


it's not actually 2.5%.. it's .575%.

Since you don't really know much about the subject I'm not really going to try and discuss it with you. You are held back by some misplaced sense of fairness or righteousness. I assure you, it's very misplaced in this particular instance of patent law.

Read Lodys website- their FAQ. Then read a patent lawyer's blog called fossblog- in particular, all of the lodsys tagged articles.

Then you should have a good handle on the facts of the situation... right?

Then read the link I posted above about the judgement against Eon-Net and put the precedent 2 and 2 together.

Then come back to the discussion armed and ready with some facts knowledge, and hopefully, an educated opinion on the matter leaving your knee-jerk assumptions behind.
post #24 of 26
Quote:
Originally Posted by charlituna View Post

Not exactly. It has to do in part with intention. The intention of patents is so that active creators can protect their work during and after creating it.

The intention in buying shares is to loan money to a company to do whatever they do. The intention of buying a building is often to rent out its space (which is why there are zoning and permit laws you have to compile with when you agree to buy the building).

Folks like Lodsys buy control over a patent with merely the intention of suing folks. In the case of Lodsys, smaller folks they figured would fold fast cause they wouldn't have a clue that they were already covered by another deal.

I think folks like Lodsys would be much happier if people just bought the license rather than suing each one of them. They bought an invention with the intention of charging people a license fee to use it. Just like buying a building with the intention of charging someone to live in it. If the people using what you own don't pay your only option is to sue.

Quote:
Originally Posted by MacRR View Post

it's not actually 2.5%.. it's .575%.

Since you don't really know much about the subject I'm not really going to try and discuss it with you. You are held back by some misplaced sense of fairness or righteousness. I assure you, it's very misplaced in this particular instance of patent law.

Read Lodys website- their FAQ. Then read a patent lawyer's blog called fossblog- in particular, all of the lodsys tagged articles.

Then you should have a good handle on the facts of the situation... right?

Then read the link I posted above about the judgement against Eon-Net and put the precedent 2 and 2 together.

Then come back to the discussion armed and ready with some facts knowledge, and hopefully, an educated opinion on the matter leaving your knee-jerk assumptions behind.

Ok so I've got the percentage Lodsys want's wrong and the amount there asking for is tiny compared to what developers are paying everyone else for the service. Even more reason for developers to just pay what they owe. Lodsys has a valid patent, deveolpers should pay up if they wan't to use the tech.
post #25 of 26
Quote:
Originally Posted by macinthe408 View Post

...Los Gatos (spanish for the Gatos)...

I had to laugh when I read your profile - I assume it is a joke since "Los Gatos" is spanish for "the cats". That is unless of course there is some english entity I am unaware of referred to as Gatos!

Edit: Never mind. After looking further at your profile and seeing your Occupation listed as "Technical Rider" it explained a lot.
post #26 of 26
Quote:
Originally Posted by timgriff84 View Post

I think folks like Lodsys would be much happier if people just bought the license rather than suing each one of them. They bought an invention with the intention of charging people a license fee to use it. Just like buying a building with the intention of charging someone to live in it. If the people using what you own don't pay your only option is to sue.



Ok so I've got the percentage Lodsys want's wrong and the amount there asking for is tiny compared to what developers are paying everyone else for the service. Even more reason for developers to just pay what they owe. Lodsys has a valid patent, deveolpers should pay up if they wan't to use the tech.

Well... I knew you were going to say that. And frankly, that's an intellectually bankrupt reply that just goes to showcase how little you understand of the situation.. But seems like you are ok with that. ah well.. Why learn about a subject, right ?

Shrug... Smarter people are on the case so have fun with your opinion.
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